consumer affairs

Proposed Rules: Closed to Comments

Subdivision a of section 20-268 of Title 20 of the New York City Administrative Code makes it “unlawful for any dealer in second-hand articles to carry on his or her business at any place other than the one designated in such license,” including business that is conducted in public spaces.Additionally, the Department has found that second-hand automobiles are frequently parked, stored or displayed in public spaces, such as sidewalks and streets, which interferes with pedestrian use and creates blockage, congestion and potential safety hazards.

The proposed rule is necessary to clarify that second-hand automobile dealers cannot park, store or display second-hand automobiles on public spaces and to ensure that second-hand automobile dealers park their vehicles in a manner that is safe and does not interfere with the flow of pedestrian traffic.

New material is underlined. [Deleted material is in brackets.]

“Shall” and “must” denote mandatory requirements and may be used interchangeably in the rules of this department, unless otherwise specified or unless the context clearly indicates otherwise.

Adopted Rules: Closed to Comments

Adopted Rules Content:

Statement of Basis and Purpose of Rule

Section 20-464(d) of Subchapter 27 of Chapter 2 of Title 20 of the New York City Administrative Code prohibits a general vendor from selling, lending, leasing or transferring his or her general vendor license or interest in the license unless authorized by the Commissioner of the Department of Consumer Affairs. Currently, the laws and rules applicable to general vendors do not specify the circumstances under which the Commissioner may authorize the transfer of a vending license. Section 35-a of Article 4 of Chapter 20 of the New York State General Business Law requires the transfer of a specialized vending license held by a disabled veteran to the spouse, children or guardian of surviving minor children of the vendor in certain circumstances upon the death or disability of the licensee. The new rule, to be codified under a new section 2-317 of subchapter AA of chapter 2 of title 6 of the Rules of the City of New York, provides that the transfer of general vending licenses is subject to the same set of standards as the transfer of specialized vending licenses, which currently apply only to disabled veterans.

New material is underlined. [Deleted material is in brackets.]

“Shall” and “must” denote mandatory requirements and may be used interchangeably in the rules of this Department, unless otherwise specified or unless the context clearly indicates otherwise.

Proposed Rules: Closed to Comments

Section 20-453 of Chapter 2 of Title 20 of the New York City Administrative Code provides that it “shall be unlawful for any individual to act as a general vendor without having first obtained a license.”A number of individuals licensed as general vendors by the Department of Consumer Affairs have physical or mental disabilities that render them unable to operate their businesses without the assistance of a helper.Many of these licensees are veterans.

The proposed rule clarifies that Section 20-453’s license requirement will not apply to helpers used by licensed general vendors with disabilities that impair their ability to operate a general vending business as long as the licensee obtains authorization from the Department to use a helper and adheres to requirements with regard to the use of helpers.

The rule would:

·define the types of disabilities that would make general vendors eligible to use helpers;

·establish procedures for requesting authorization to use helpers;

·provide for a special designation on the general vendor’s license indicating that he or she is authorized to use helpers;

·provide for certain restrictions on the activities of helpers;

·require the general vendor to be present at all times;

·require the general vendor to maintain records regarding the use of his or her helpers;

·make the general vendor responsible for ensuring that helpers comply with all applicable laws and regulations; and

·establish procedures for the revocation of authorization in the event the general vendor or his or her helpers fail to comply with applicable law.

Proposed Rules: Closed to Comments

Section 6-130[1] of the Administrative Code of the City of New York (the Prevailing Wage Law), added by Local Law 27 of 2012, requires certain developers receiving City financial assistance and certain lessors leasing commercial office space or commercial office facilities to the City to pay their building service employees the prevailing wage.

These proposed rules clarify provisions in the Prevailing Wage Law, establish requirements to implement the law and meet its goals, and provide guidance to employers and employees.Specifically, these rules:

·Establish that covered employers must require all building service contractors to pay the prevailing wage to their building service employees;

·Set forth the distribution and posting requirements for employee notices required by the Prevailing Wage Law;

·Set forth the recordkeeping requirements under the Prevailing Wage Law;

·Clarify the Prevailing Wage Law’s definition of “covered developer” and “building service work;”

·Outline the Department’s enforcement steps, including how a covered employer may cure a violation of the Prevailing Wage Law, how the Department will commence a case, and how the Department may settle a complaint;

·Clarify that the Office of Administrative Trials and Hearings (OATH) will issue a decision on the record in all cases;

·Provide guidance on how an OATH administrative law judge may calculate back wages for a building service employee;

·Clarify that if one or more building service employees start or have a civil action pending , it does not preclude the Department from commencing, prosecuting, or settling a case based on some or all of the same violations; and

·Clarify what other appropriate relief may be imposed for a violation ofthe Prevailing Wage Law, in addition to the penalties set forth in the law.

New text is underlined; deleted material is in [brackets].

“Shall” and “must” denote mandatory requirements and may be used interchangeably in the rules of this department, unless otherwise specified or unless the context clearly indicates otherwise.

[1]There are two Sections 6-130 in the Administrative Code of the City of New York.

Proposed Rules: Closed to Comments

The City Council enacted the “Earned Sick Time Act,” found in Chapter 8 of Title 20 of the Administrative Code of the City of New York (as added by Local Law 46 for the year 2013, and amended by Local Laws 6 and 7 for the year 2014), so that employees can take time off work to address their health needs or the health needs of family members. The City Council determined that earned sick time would improve public health, foster employee retention and productivity and result in a more prosperous, safer and healthier city.

These rules clarify parts of the Earned Sick Time Act, creating requirements to carry it out and meet its goals and provide guidance to covered employers and protected employees. Specifically, these rules:

• Provide additional guidance on calculating the number of employees in a business;

• Address situations where employees are employed by a joint employer;

• Define “temporary help firm” and define when temporary help firms are legally responsible for violations;

• Allow an employer to set the minimum number of hours and time frame for the use of sick time;

• Clarify the calculation of rate of pay of paid sick time for employees paid on a piecework basis;

• Clarify that wage supplements need not be included in the rate of pay of paid sick time;

• Require a business that takes ownership of another business to provide written sick time policies to employees at the time of sale, transfer, acquisition or assignment;

• Address written sick time policies and what an employer must include in them;

• Clarify what records employers must keep;

• Make clear that an employer’s failure to keep or produce written sick time policies and records creates a reasonable inference that the department’s allegation against it is a fact;

• Clarify that an employer’s failure to respond to a complaint or provide information requested by the Department regarding a complaint will be subject to a $500 penalty;

• Establish relief to an employee if an employer’s policy or practice is not to allow an employee to accrue and/or use sick time;

• Address the calculation of accruals and hours worked for certain employees;

• Clarify that an employer may take disciplinary action against an employee who engages in a pattern of abuse of paid time;

• Define the term “adverse employment action” as used in the definition of retaliation against an employee; and

• Clarify the department’s burden of proof for retaliation cases.

The authority for the Department of Consumer Affairs to issue these rules is found in section 2203 of the New York City Charter and Chapter 8 of Title 20 of the Administrative Code.

Proposed Rules: Closed to Comments

Agency:

Department of Consumer Affairs

Comment By:

Friday, October 9, 2015

Proposed Rules Content:

Statement of Basis and Purpose of Proposed Rule

In October 2014, the City Council passed Local Law 53 of 2014, otherwise known as the Mass Transit Benefits Law, which requires employers with 20 or more full time employees to offer certain pre-tax mass transit benefits to their employees. The law is expected to reduce transportation costs to employees, promote a cleaner environment by increasing the use of mass transit and lower payroll taxes for employers.

The proposed rules clarify provisions in the Mass Transit Benefits Law, establish requirements to implement the law and meet its goals, and provide guidance to employers and employees. Specifically, the rules:

Set forth the minimum time an employee must have been employed by the company to qualify for transportation benefits;

Establish how business size is calculated to determine whether a business is covered under the law; and

Clarifies how the law applies to temporary help firms.

New material is underlined. [Deleted material is in brackets.]

“Shall” and “must” denote mandatory requirements and may be used interchangeably in the rules of this department, unless otherwise specified or unless the context clearly indicates otherwise.

Proposed Rule

Section 1. A new chapter 9 of Title 6 of the Rules of the City of New York is added to read as follows:

CHAPTER 9 MASS TRANSIT BENEFITS

§9-01 Definitions.

As used in this chapter, the following terms have the following meanings:

“Chain business” means any employer that is part of a group of establishments that share a common owner or principal who owns at least thirty percent of each establishment where such establishments (i) engage in the same business or (ii) operate pursuant to franchise agreements with the same franchisor as defined in general business law section 681; provided that the total number of employees of all such establishments is at least twenty.

“Transportation fringe benefits” means the pre-tax payroll deduction, authorized pursuant to 26 U.S.C. § 132(a)(5), that employers are required to offer to full-time employees under the Mass Transit Benefits Law for the full-time employee to purchase transit passes or similar forms of payment for transportation on public or privately-owned mass transit to commute to or from a workplace or work location in New York City.

“Employee” means an “employee,” “manual worker,” “railroad worker,” “commission salesman,” and “clerical or other worker” as set forth in § 190 of the New York State Labor Law.

“Employer” means “employer” as set forth in § 190 of the New York State Labor Law that employs twenty or more full-time employees in New York City.

“Full-time employee” means an “employee,” “manual worker,” “railroad worker,” “commission salesman,” and “clerical or other worker” as set forth in § 190 of the New York State Labor Law who has worked an average of 30 hours or more per week in the most recent four weeks, any portion of which was in New York City, for a single employer.

“Mass Transit Benefits Law” means Chapter 9 of Title 20 of the Administrative Code of the City of New York as amended from time to time and in effect.

“Month” has the meaning set forth in § 190(8) of the New York State Labor Law.

“Temporary help firm” means an employer that recruits, hires and supplies employees to perform work or services for another organization to: (i) support or supplement the other organization’s workforce; (ii) provide assistance in special work situations including, but not limited to, employee absences, skill shortages or seasonal workloads; or (iii) perform special assignments or projects.

(a) For purposes of the Mass Transit Benefits Law, a “full-time employee” means full-time employee as defined in § 9-01 of this chapter, including the requirement in that definition that an employee must work an average of 30 hours or more per week during a four week period before he or she qualifies as a “full-time employee.”

(b) An employer’s number of full-time employees is determined by calculating the average number of full-time employees for the most recent consecutive three- month period, provided that for an employer that has operated for less than three months, the number of full-time employees is determined by calculating the average number of full-time employees per week for the period of time in which the employer has been in operation.

(c) Full-time employees at all of an employer’s or a chain business’s locations in New York City shall be counted in determining the number of full-time employees of the employer.

§9-04 Temporary Help Firms.

(a) Where a temporary help firm supplies a full-time employee to another organization, the temporary help firm shall be the employer of the full-time employee for purposes of the Mass Transit Benefits Law and must comply with its provisions, regardless of the size of the other organization.

(b) To determine the number of hours worked each week by an employee working for a temporary help firm, the employer must aggregate the number of hours worked by the employee in the most recent four weeks at all placements.

§9-05 Employee Eligibility.

(a) An employer must provide transportation fringe benefits to full-time employees by January 1, 2016, or four weeks after employment as a full-time employee with employer, whichever is later.

(b) An employer is not required to provide transportation fringe benefits to a full-time employee who works remotely and does not commute to a physical office or work site in New York City.

(c) If an employer’s work force is reduced to fewer than 20 full-time employees, the full-time employees using pre-tax earnings to purchase transportation fringe benefits before the work force was reduced must continue to be provided with the opportunity to use pre-tax earnings to purchase transportation fringe benefits for the duration of their employment as a full-time employee.

§9-06 Maximum Deductions.

Employers must offer full-time employees the maximum amount permitted for pre-tax deductions for transportation fringe benefits as are available under federal law.

§9-07 Recordkeeping Requirements.

Employers must retain records for two years sufficient to demonstrate that (i) each full-time employee eligible for transportation fringe benefits pursuant to the Mass Transit Benefits Law and this Chapter was offered the opportunity to use pre-tax earnings to purchase transportation fringe benefits to the extent permitted under federal law and (ii) whether the employee accepted or declined the offer. Employers may use the form provided by the Department and available on the Department’s website to document compliance.

§9-08 Employer-Funded Transit Benefits.

(a) As an alternative to providing the opportunity to purchase pre-tax transportation fringe benefits, an employer may provide at the employer’s expense a transit pass or similar form of payment for transportation on public or privately-owned mass transit to commute to or from a workplace or work location in New York City.

(b) If the employer-provided transit pass or similar form of payment is less than the maximum qualified transportation fringe benefit allowed under federal law, then the employer must offer employees the opportunity to make up the difference in pre-tax payroll deductions.

Proposed Rules: Closed to Comments

Agency:

Department of Consumer Affairs

Comment By:

Monday, August 10, 2015

Proposed Rules Content:

Statement of Basis and Purpose of Proposed Rule

Section 2-57(c) of Title 6 of the Rules of the City of New York, Chapter 2, subchapter F, sets forth the insurance requirements that must be satisfied by a sidewalk café licensee throughout the term of its license. The Department of Consumer Affairs proposes amendments to clarify the requirements and bring them into line with city-wide standards, including by raising the minimum amounts of coverage. Specifically, the proposed amendments:

Clarify the A.M. Best or Standard & Poor’s rating the issuing insurance company must satisfy;

Raise the minimum amounts of coverage to one million dollars ($1,000,000) per occurrence and two million dollars ($2,000,000) aggregate;

Clarify that the coverage must at least be as broad as provided in the most recently issued edition of Insurance Services (“ISO”) Form CG 001 and that it be “occurrence” rather than “claims-made”;

Clarify that the coverage for the City of New York as an Additional Insured must be as broad as provided in the most recent edition of the ISO Form CG 2026;

Require that the coverage meet the requirements of the rule and the terms of the licensee’s revocable consent agreement;

Require that the licensee provide to the Department an endorsement(s) naming the City of New York as an Additional Insured and proof of the insurance by submission of a certificate of insurance in a form satisfactory to the Department; and

Require that the endorsement and certificate of insurance satisfy the requirements of the rule and the terms of the licensee’s revocable consent agreement, clarify the information that must be included, and require a sworn statement in a form prescribed by the Department from a licensed insurer or broker certifying that the certificate of insurance is accurate in all material aspects.

New material is underlined.

[Deleted material is in brackets.]

“Shall” and “must” denote mandatory requirements and may be used interchangeably in the rules of this department, unless otherwise specified or unless the context clearly indicates otherwise.

Proposed Rule

Subdivision (c) of section 2-57 of Title 6 of the Rules of the City of New York is amended to read as follows:

(c) [Every licensee must secure and maintain throughout the term of the license liability insurance issued by a company duly authorized to do business in the State of New York, insuring the licensee and the city of New York and to hold them harmless from and against any claim, injury, or damage caused or alleged to be caused by or as a result of the construction, operation or use of the sidewalk café and any structure hereby authorized in the following amounts:] Insurance Requirements.

(1) [For bodily injury including death, in (i) the minimum amount of $100,000 for any one (1) person and (ii) the minimum amount of $300,000 for any one (1) accident; and] Every licensee must secure and maintain throughout the term of the license commercial general liability (“CGL”) insurance, which shall:

(i) be issued by a company that may lawfully issue the CGL policy. The company must have an A.M. Best rating of at least A-/VII or a Standard and Poor’s rating of at least A;

(ii) insure both the licensee and the City of New York and protect them from any claims for injury (including death) or property damage that may arise from or allegedly arises from construction, operation or use of the sidewalk café and any structure hereby authorized;

(iii) provide coverage of at least one million dollars ($1,000,000) per occurrence and two million dollars ($2,000,000) aggregate;

(iv) provide coverage at least as broad as that provided in the most recently issued edition of Insurance Services Office (“ISO”) Form CG 001 and be “occurrence” based rather than “claims-made”; and

(v) name the City of New York as an Additional Insured with coverage at least as broad as the most recent edition ISO Form CG 2026.

(2) [for property damage in the minimum amount of $25,000.] Failure to maintain insurance coverage in [the foregoing amounts] complete conformity with this rule and the terms of licensee’s revocable consent agreement shall cause the immediate revocation of the license.

(3) Every licensee shall provide the endorsement(s) naming the City as an Additional Insured and proof of CGL insurance by submission of a certificate of insurance in a form satisfactory to the Department that:

(i) satisfies the requirements of this rule and the terms of licensee’s revocable consent agreement;

(ii) identifies the insurance company that issued such insurance policy, the policy number, limit(s) of insurance, and expiration date; and

(iii) is accompanied by a sworn statement in a form prescribed by the Department from a licensed insurance broker or agent certifying that the certificate of insurance is accurate in all material respects.